Burling v. Thompkins

Paterson, J. Ejectment. In the title of the cause, the plaintiff is styled “Benjamin Burling, administrator of the estate of William Burling, deceased.” The complaint contains no allegations respecting his representative character, being in the ordinary form, alleging ownership and right of possession in the plaintiff. To this complaint the defendant filed a demurrer, which was overruled. The ground of demurrer is, that it cannot be ascertained from the complaint whether the plaintiff is suing as administrator in his representative capacity, or as an individual in his own right.

The words quoted created no uncertainty or ambiguity. If words showing simply the official capacity of the party are added directly to his name in the title of the cause, as in the case at bar, without the word “as,” they will be regarded as a mere descriptio personae. The allegations of the complaint show whether the action is brought by or against a person en autre droit. (People v. Houghtaling, 7 Cal. 350; Ogdensburg Bank v. Van Rensselaer, 6 Hill, 241.)

The answer denies generally and specifically all of the allegations of the complaint, pleads in bar of the cause of action set up in the complaint the provisions of sections 318, 319, and 343 of the Code of Civil Procedure, and for a further answer, equitable defense, and cross-complaint, alleges that prior to the month of August, in the year 1868, one Bennett settled upon the' land in controversy, and made valuable improvements thereon, claiming the right to occupy the same as a homestead under the laws of the United States; that while the land was so occupied by Bennett,—February, 1870,—defendant purchased his improvements and possessory right, and immediately moved upon the land, and has continued to occupy the same with his family ever since, claiming and holding the same for the purpose of settlement and cultivation as a homestead under the homestead laws; that the land in controversy was listed to the state of [259]California as land in lieu of school lands under the laws of the United States, on or about November 15, 1871; that there was no basis for the listing of said land to the state of California, there being no sixteenth or thirty-sixth section in lieu of which the lands in controversy were listed and taken by said state; that in August, 1868, while Bennett was in possession of the land, William Burling made application to purchase the land under the laws of the state, and falsely and fraudulently made affidavit that the land was not occupied by any other person than himself, and that there were no improvements except his own on the land, nor was there any claim to said land adverse to his own; that Burling died in July, 1877; that on the 30th of March, 1878, the heirs of said William Burling, deceased, received a patent for said land from the state of California, which was based upon the false and fraudulent application above referred to; that when said patent was issued, the state had no title to the land, the same having failed by reason of the erroneous and baseless listing above mentioned; that all the right, title, and interest that plaintiff has is derived from and rests upon said pretended patent of the state; that William Burling never occupied the land, nor any part thereof; that in the year 1870, while he was in possession of the land, defendant went to the United States land-office and offered to make the proper application to enter the land under the homestead laws, and to pay the fee required in such cases, but the register of the land-office refused to permit him to make such application, and informed him that the land was not subject to entry under said homestead laws; and that defendant was misled by said statement, and was thereby prevented from prosecuting his homestead claim at that time; that the defendant still continues to claim the land as a homestead, under said homestead laws, and was about to take proper steps to assert and perfect his claim when this action was commenced, and will do so